Citation Nr: 0920973
Decision Date: 06/04/09 Archive Date: 06/16/09
DOCKET NO. 98-17 878 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUES
1. Entitlement to an evaluation in excess of 30 percent for
service-connected residuals of a gunshot wound (GSW) of the
left shoulder.
2. Entitlement to an evaluation in excess of 10 percent for
service-connected residuals of a GSW of the chest.
3. Entitlement to an effective date prior to December 18,
2001 for a total disability rating based on individual
unemployability due to service-connected disability (TDIU).
REPRESENTATION
Appellant represented by: Daniel G. Krasnegor, Esquire
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. W. Loeb
INTRODUCTION
The Veteran served on active duty from January 1947 to
December 1952.
In February 2006, the Board of Veterans' Appeals (Board)
denied an evaluation in excess of 40 percent for removal of
ribs, denied an evaluation in excess of 30 percent for
residuals of a SFW to the left shoulder, granted a 10 percent
rating for residuals of a SFW to the chest with damage to
Muscle Group XX, denied an effective date prior to December
18, 2001 for TDIU, and remanded the issue of an evaluation in
excess of 50 percent for permanent collapse of the left lung
to the Department of Veterans Affairs (VA) Regional Office in
San Juan, Puerto Rico (RO) for additional development.
The February 2006 Board denial of an evaluation in excess of
30 percent for residuals of a SFW to the left shoulder,
denial of a rating in excess of 10 percent rating for
residuals of a SFW to the chest with damage to Muscle Group
XX, and denial of an effective date prior to December 18,
2001 for TDIU were vacated and remanded back to the Board by
an Order of the Court of Appeals for Veterans Claims (Court)
in December 2007 based on a December 2007 Joint Motion For
Partial Remand (Joint Motion).
A letter was sent to the Veteran's attorney on November 7,
2008, with a copy to the Veteran, in which the Veteran was
given 90 days from the date of the letter to submit
additional argument or evidence in support of his appeal
prior to the Board's readjudication. Evidence was received
on behalf of the Veteran in December 2008 and February 2009
along with a waiver of RO review.
FINDINGS OF FACT
1. Residuals of a SFW of the left shoulder cause no more
than severe functional impairment.
2. Residuals of a SFW of the chest cause moderately severe
impairment of Muscle Group XX.
3. An implied claim for TDIU was received by VA from the
Veteran on July 24, 1997, with medical evidence that the
veteran was totally disabled due to service-connected
disabilities received shortly thereafter.
CONCLUSIONS OF LAW
1. The criteria for an evaluation in excess of 30 percent
for residuals of a SFW to the left shoulder have not been
met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38
C.F.R. §§ 3.159, 4.1-4.14, 4.40-4.56, 4.73, Diagnostic Codes
5302-5303 (2008).
2. The criteria for an evaluation of 20 percent for
residuals of a SFW to the chest have been met. 38 U.S.C.A.
§§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159,
4.1-4.14, 4.40-4.56, 4.73, Diagnostic Code 5320 (2008).
3. An effective date of July 24, 1997 for the grant of TDIU
is assignable. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R.
§ 3.400 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duty to Notify and Assist
The Board has considered the Veterans Claims Assistance Act
of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West 2002 and Supp. 2007). The regulations
implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a) (2008).
VA has a duty to notify the claimant of any information and
evidence needed to substantiate and complete a claim.
38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi,
16 Vet. App. 183 (2002).
After having carefully reviewed the record on appeal, the
Board has concluded that the notice requirements of VCAA have
been satisfied with respect to the issues decided herein.
The notice and assistance provisions of VCAA should be
provided to a claimant prior to any adjudication of the
claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004).
As this case began prior to the passage of VCAA, notice to
the veteran was not sent in this case until later in the
claims process. However, VA may proceed with adjudication of
a claim if errors in the timing or content of the notice are,
as in this case, not prejudicial to the claimant. Dunlap v.
Nicholson, 21 Vet. App. 112 (2007); Mayfield v. Nicholson, 19
Vet. App. 103 (2005); see also Pelegrini, 18 Vet. App. at
121. Letters were sent to the Veteran in October 2001 and
July 2004 that informed him of the requirements needed to
establish entitlement to an increased evaluation. He was
informed about effective dates in April 2006. See
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
Relevant supplemental statements of the case were issued
after July 2004.
The Veteran was also advised that VA used a published
schedule for rating disabilities that determined the rating
assigned and that evidence considered in determining the
disability rating included the nature and symptoms of the
condition, the severity and duration of the symptoms, and the
impact of the condition and symptoms on employment.
Although the Veteran was not specifically advised as to
providing evidence on the impact that his service-connected
disability has on his daily life, this is not prejudicial
because a reasonable person could be expected to understand
from the notices that the impact of the disability on his
daily life is relevant to substantiating the claim. See
Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008).
VA has a duty to assist the claimant in obtaining evidence
necessary to substantiate a claim. VCAA also requires VA to
provide a medical examination when such an examination is
necessary to make a decision on the claim. 38 U.S.C.A.
§ 5103A(d); 38 C.F.R. § 3.159. Relevant VA examination
reports are of record, including in June 2004.
The Board concludes that all available evidence that is
pertinent to the claims has been obtained and that there
is sufficient medical evidence on file on which to make a
decision on each issue. The Veteran has been given ample
opportunity to present evidence and argument in support of
his claims, including at his November 1998 RO hearing.
The Board additionally finds that general due process
considerations have been complied with by VA. See
38 C.F.R. § 3.103 (2008).
Analyses of the Claims
Increased Ratings
According to the Joint Motion, the Board's discussion of the
correct rating to assign the Veteran's service-connected
residuals of a SFW of the left shoulder was insufficient
because the Board concluded that the Veteran "has
considerable motion remaining in his left shoulder, and the
shoulder is clearly not ankylosed," without adequate
discussion of the medical evidence. The Joint Remand
concluded that the Board should determine whether the
"severe limitation of motion" described in the December
2001 and June 2004 VA examinations is the equivalent of
ankylosis and, if so, whether a higher rating is available
under Diagnostic Code 5200. The Joint Motion also noted that
the Board did not adequately discuss the factors described in
38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App.
202, 206 (1995).
The Veteran's service medical records show that in January
1951 he sustained a shell fragment wound of the left anterior
shoulder that penetrated into the left lung. During
treatment for the Veteran's left lung, a partial left
scapulectomy was carried out. A report of an August 1952
Medical Evaluation Board noted pertinent diagnoses of a
partial acquired absence of the left scapula.
A rating decision dated in April 1953 granted service
connection for residuals of a gunshot wound of the left
shoulder and chest with injury to Muscle Groups II and III,
and limitation of motion. The rating decision was based on a
review of service records. That rating decision assigned a
20 percent evaluation under Diagnostic Codes 5302-5303. That
evaluation remained in effect until a May 2005 rating
decision granted a 30 percent rating for service-connected
GSW residuals of the left shoulder and chest, effective July
24, 1997. A March 2006 rating decision granted a separate 10
percent rating for service-connected residuals of a GSW to
the chest, Muscle Group XX, effective July 24, 1997.
A report of a VA surgical examination performed in December
1953 disclosed that examination revealed a well-healed,
nonadherent, nontender, subscapular thoracotomy scar
extending from the level of about the first rib posteriorly
to the anterior axillary line. There was evidence of an
absence of part of the scapula on that side. There was
another well-healed, curved scar extending from the left
axilla medially under the left nipple, and measuring about 6
inches in length. There was another scar measuring 4 by 1
inch in the left lateral chest wall at the level of the sixth
rib that was well healed and nonadherent. There was also a
1- by 1 1/2-inch well-healed, nontender scar in the left
shoulder. There was a collapse of the subclavicle area in
the left side extending down to the level of the nipple. The
diagnoses following the examination were scars as described
and a left upper thoracoplasty.
Under 38 C.F.R. § 4.73, Diagnostic Code 5302, a 20 percent
evaluation is for assignment for moderate or moderately
severe impairment of Muscle Group II, involving the extrinsic
muscles of the shoulder girdle, when involving the minor or
nondominant extremity, as is the situation in this case, and
a 30 percent evaluation is for assignment for severe
impairment. Similar evaluations are provided under
Diagnostic Code 5303, which involves Muscle Group III, the
intrinsic muscles of the shoulder girdle. The 30 percent
evaluation represents the highest schedular evaluation under
Diagnostic Codes 5302 and 5303. However, under 38 C.F.R.
§ 4.71a, Diagnostic Code 5200, a 40 percent evaluation could
be assigned for unfavorable ankylosis of the scapulohumeral
articulation that is unfavorable with abduction limited to 25
degrees from the side.
The evidence for consideration consists of private and VA
medical records, as well as the findings of VA examinations
performed in September 1997, December 2001, and June 2004.
While the VA and private medical records may document
complaints associated with the Veteran's left shoulder and
chest disabilities, those records contain limited clinical
findings with which to evaluate the severity of the Veteran's
disability - the December 2004 medical report from E.R.B.,
M.D., is the only recent private report that refers to left
shoulder disability, with the Veteran having marked stiffness
and pain; left shoulder myositis was diagnosed.
The report of the September 1997 VA examination shows the
Veteran reported that he experienced pain around the left
shoulder joint with a soft tissue mass on the left rib cage.
The Veteran also reported that he experienced pain on the tip
of his ribs. On physical examination, there was moderate
muscle atrophy of the left deltoid and the left rib
intercostal muscle. The muscles penetrated were the left
deltoid muscle and the left intercostal muscles. Physical
examination of the scars of the left shoulder disclosed a
loss of subcutaneous tissue described as severe with loss of
anterior fiber of the deltoid muscles. The range of motion
of the left shoulder was 80 degrees of abduction, 60 degrees
of flexion, 35 degrees of extension and 75 degrees on
internal and external rotation. The examiner noted that
there was exquisite pain objectively on all movements of the
left shoulder, but that there was no instability of the left
shoulder. There was tenderness to palpation on the left
shoulder rotator cuff tendon and the bursa that was described
as mild.
At the time of a VA examination performed in December 2001,
the Veteran related that he was experiencing moderate to
severe left shoulder pain and severe pain on the left side of
the chest and the left intercostal area and scapula. On
physical examination of the left anterior deltoid area, there
was a loss of the subcutaneous tissue and a moderate loss of
muscle and moderate muscle atrophy of the left deltoid
muscle. On the back portion of the scapula, there was
moderate to severe loss of subcutaneous tissue and muscle.
On the left intercostal area, the examiner noted loss of
subcutaneous tissue. The examiner indicated that there was
moderate to severe tissue loss in comparison of all scars of
the left shoulder and chest. The muscle groups penetrated
included the left scapula muscles, supraspinatus and
infraspinatus, rhomboid muscles, left intercostal muscles,
thoracic paravertebral muscles and the left deltoid muscle.
It was indicated that there was tendon damage to all muscles
affected, and nerve damage with severe atrophy and diminished
pinprick and weakness. Muscle strength of the left deltoid
muscle was described as 3.5/5.
The examiner reported that the Veteran could move his left
shoulder joint independently with useful range of motion, but
with limitation, pain and easy fatigability and weakness upon
doing repetitive movements. Range of motion of the left
shoulder was described as 70 degrees of abduction and
flexion, 50 degrees of internal rotation and 45 degrees of
rotation, both actively and passively. The examiner stated
that the Veteran was additionally limited by pain, fatigue,
weakness and lack of endurance, following repetitive use or
during flare-ups. The examiner concluded that these
symptoms had a major functional impact when using the other
hand which required overhead or grabbing objects. The
examiner did note that the Veteran was right-handed.
On VA examination in June 2004, the examiner indicated that
muscle groups penetrated included Muscle Groups II, III, IV,
XX and XXI. There was moderate loss of subcutaneous tissue
and muscle in the left anterior deltoid, moderate to severe
loss of subcutaneous tissue in the thoracic and intercostal
area. Also reported was moderate muscle atrophy of the left
deltoid supraspinatus, infraspinatus rhomboid and trapezius
paravertebral muscles. It was noted that the left shoulder
joint muscle group could move independently through useful
ranges of motion but with severe limitation of motion and
easy fatigability and weakness. Motion of the left shoulder
included 70 degrees of abduction, 85 degrees of flexion, 60
degrees of internal rotation, and 10 degrees of external
rotation. There was a positive apprehension test and
crepitation of the left shoulder.
The 30 percent rating assigned for the Veteran's nondominant
left shoulder disability is the highest schedular evaluation
under the diagnostic codes utilized to evaluate the severity
of this disability, to also include Diagnostic Code 5201 for
limitation of motion of the shoulder. In fact, a higher
evaluation of 40 percent can only be assigned under
Diagnostic Code 5200 for ankylosis of the nondominant
scapulohumeral joint when unfavorable abduction is limited to
25 degrees from the side.
According to 38 C.F.R. § 4.55, the combined evaluation of
muscle groups acting upon a single unakylosed joint must be
lower than the evaluation for unfavorable ankylosis of that
joint, except in the case of Muscle Groups I and II acting
upon the shoulder. In the case of an ankylosed shoulder, if
Muscle Groups I and II are severely disabled, the evaluation
of the shoulder joint under Diagnostic Code 5200 will be
elevated to the level for unfavorable ankylosis, if not
already assigned, but the muscle groups themselves will not
be rated. 38 C.F.R. § 4.55(c), (d) (2008).
Ankylosis is "immobility and consolidation of a joint due to
disease, injury, or surgical procedure." Colayong v. West,
12 Vet App 524 (1999) (citing DORLAND'S ILLUSTRATED MEDICAL
DICTIONALRY (28TH Ed. 1994) at 86).
Although the Veteran's left shoulder is significantly
impaired, as evidenced by the current rating, it is not the
equivalent of unfavorable ankylosis. In fact, the current 30
percent rating that can be assigned under Diagnostic Code
5201 when motion is limited to 25 degrees from the side is
the same rating assigned under Diagnostic Code 5200 for
ankylosis intermediate between favorable and unfavorable.
Although it was reported on examination in December 2001 that
the Veteran had lost more than 50 percent of normal movement
in the left shoulder, this means that there was still
significantly more than zero movement available. When
examined in December 2001 and June 2004, flexion and
abduction of the left shoulder was to at least 70 degrees,
although with easy fatigability and weakness. Moreover,
38 C.F.R. § 4.55(c) does not allow for a rating for
unfavorable ankylosis in this case because Muscle Group I is
not affected.
With respect to the consideration of 38 C.F.R. §§ 4.40, 4.45
and DeLuca, these provisions do not apply when a Veteran is
already rated at the maximum schedular rating for limitation
of motion of a joint and a higher rate requires ankylosis, as
in this case. See Johnston v. Brown, 10 Vet.App. 80, 85
(1997).
The Board will now address the claim for an evaluation in
excess of 10 percent for service-connected residuals of a SFW
of the chest wall. According to the Joint Motion, the
Board's reasons and bases were inadequate, including the
Board's failure to adequately differentiate the muscle groups
involved.
Under Diagnostic Code 5320, a noncompensable evaluation is
for assignment for slight impairment of the muscles of the
cervical and thoracic region, a 10 percent for moderate
impairment, a 20 percent for moderately severe impairment,
and a 40 percent rating for severe impairment. Diagnostic
Code 5321 is not for consideration because a note contained
in 38 C.F.R. § 4.97 under the General Formula for Restrictive
Lung Disease indicates that involvement of Muscle Group XXI
will not be rated separately from the respiratory disability
for which the Veteran is currently assigned a 50 percent
rating. Consideration of an evaluation under Diagnostic Code
5321 in the veteran's case is therefore not appropriate.
The September 1997 VA examination reported the presence of
moderate muscle atrophy of the left rib intercostal muscles.
On VA examinations in December 2001 and June 2004, the left
intercostal area had a moderate to severe cosmetically
disfiguring scar with loss of subcutaneous tissue. With
resolution of reasonable doubt, the Board finds that the
veteran is entitled to a 20 percent evaluation, but no
higher, for moderately severe impairment of Muscle Group XX
under Diagnostic Code 5320. There is no medical evidence of
severe impairment of Muscle Group XX, as atrophy of the
intercostal muscles was considered moderate.
Earlier Effective Date
According to the Joint Motion, the Board failed to provide an
adequate statement of reasons and bases for its denial of an
effective date prior to December 18, 2001 for the grant of
TDIU. The Joint Motion noted the Board's failure to address
the Veteran's contention that his July 1997 claim for
increase should include a claim for TDIU and noted that the
Board did not discuss medical evidence relating to the
Veteran's service-connected breathing problems within a year
prior to the date of claim.
A claim for a total rating for compensation purposes based
upon individual unemployability is essentially a claim for an
increased rating. See Hurd v. West, 13 Vet. App. 449 (2000).
The law with regard to determining the effective date of an
increased evaluation is set forth in 38 U.S.C.A. § 5110(a),
(b)(2) (West 2002) and 38 C.F.R. § 3.400(o) (2008). The
general rule with respect to the effective date of an award
of increased compensation is that the effective date of such
award "shall not be earlier than the date of receipt of
application therefor." 38 U.S.C.A.
§ 5110(a). This statutory provision is implemented by the
regulation, which provides that the effective date for an
award of increased compensation will be the date of receipt
of claim or the date entitlement arose, whichever is later.
38 C.F.R. § 3.400(o)(1). "Date of receipt" generally means
the date on which a claim, information, or evidence was
received by VA. 38 C.F.R. § 3.1(r) (2008).
An exception to that general rule applies under circumstances
where evidence demonstrates that a factually ascertainable
increase in disability occurred within the one-year period
preceding the date of receipt of a claim for increased
compensation. In that circumstance, the law provides that
the effective date of the award "shall be the earliest date
as of which it is ascertainable that an increase in
disability had occurred, if application is received within
one year from such date." 38 U.S.C.A. § 5110(b)(2); 38
C.F.R. § 3.400(o)(2); see also Harper v. Brown, 10 Vet. App.
125, 126 (1997); VAOPGCPREC 12-98; 63 Fed. Reg. 56704 (1998).
The term "increase" as used in 38 U.S.C.A. § 5110 and 38
C.F.R. § 3.400 means an increase to a higher disability
level. See Hazan v. Gober, 10 Vet. App. 511 (1997).
The Court has made it clear that the question of when an
increase in disability is factually ascertainable is answered
by the Board based on the evidence in a veteran's VA claims
folder. "Evidence in a claimant's file which demonstrates
that an increase in disability was 'ascertainable' up to one
year prior to the claimant's submission of a 'claim' for VA
compensation should be dispositive on the question of an
effective date for any award that ensues." Quarles v.
Derwinski, 3 Vet. App. 129, 135 (1992).
Total disability ratings for compensation may be assigned
where the schedular rating for the service-connected
disability or disabilities is less than 100 percent when it
is found that the service-connected disability is sufficient
to produce unemployability without regard to advancing age.
38 C.F.R. §§ 3.340, 3.341, 4.16 (2008).
In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court
referred to apparent conflicts in the regulations pertaining
to individual unemployability benefits. Specifically, the
Court indicated there was a need to discuss whether the
standard delineated in the controlling regulations was an
"objective" one based on the average industrial impairment or
a "subjective" one based upon the veteran's actual industrial
impairment. In a pertinent precedent decision, the VA
General Counsel concluded that the controlling VA regulations
generally provide that veterans who, in light of their
individual circumstances, but without regard to age, are
unable to secure and follow a substantially gainful
occupation as the result of service-connected disability
shall be rated totally disabled, without regard to whether an
average person would be rendered unemployable by the
circumstances. Thus, the criteria include a subjective
standard. It was also determined that "unemployability" is
synonymous with inability to secure and follow a
substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed.
Reg. 2317 (1992).
An April 1953 rating decision granted service connection for
permanent collapse of the left lung, 50 percent disabling;
removal of six ribs, 40 percent disabling; GSW of the left
shoulder and chest, 20 percent disabling; and GSW of the left
thigh, 10 percent disabling. The Veteran's combined rating
was 80 percent. All ratings were effective January 1, 1953.
The Veteran's May 1996 claim for TDIU was denied by
unappealed rating decision in July 1996. The next
correspondence from the Veteran was a claim for increased
ratings for his service-connected disabilities, which was
received by VA on July 24, 1997. A VA Form21-8940, Veteran's
Application For Increased Compensation Based On
Unemployability, was received by VA on August 13, 1999. A
May 2003 rating decision granted TDIU effective December 18,
2001, the date of VA examination.
Based on the above VA regulations, the Board must now
determine the date of claim for TDIU and the date entitlement
to TDIU arose, meaning the initial date that there is
evidence of unemployability.
Although the Veteran's July 1997 claim did not specifically
mention a claim for TDIU, the Board notes that the Veteran
was claiming increased evaluations for all of his service-
connected disabilities because he believed that they had
increased in severity. Moreover, the Veteran had filed a
claim for TDIU a year earlier. Additionally, there is a
February 1998 statement from a private physician that the
Veteran's disabilities, including nonservice-connected ones,
resulted in complete disability of 120 percent. This
statement did not separate out the service-connected and
nonservice-connected disabilities. Based on the above, the
Board finds that the Veteran's July 1997 claim includes a
claim for TDIU. The Board must now determine when
entitlement arose.
The only medical evidence within a year prior to the July
1997 claim is a March 1997 VA hospital report showing
hospitalization for two days for eye problems. The next
medical evidence involves VA examination reports for
September 11 and 12, 1997, which show moderate muscle atrophy
of the left deltoid and left rib intercostal muscles, the
absence of six ribs on the left, a very tender soft-tissue
mass on the tip of the ribs, severe loss of subcutaneous
tissue of the left shoulder and left rib cage. The Veteran
had exquisite pain on all movements of the right shoulder and
moderate restrictive lung impairment on pulmonary function
testing. This medical evidence, roughly contemporaneous with
the date of claim, shows significant service-connected
disability.
Consequently, with resolution of reasonable doubt, the Board
finds that the effective date for TDIU is July 24, 1997, the
date of claim. 38 C.F.R. § 3.102 (2008). See also Roberson
v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (Holding that
once a veteran submits evidence of a medical disability and
submits a claim for an increased disability rating with
evidence of unemployability, VA must consider a claim for a
total rating based on individual unemployability).
ORDER
An evaluation in excess of 30 percent for service-connected
residuals of SFW of the left shoulder is denied.
An evaluation of 20 percent is granted for service-connected
residuals of SFW of the chest, subject to the controlling
regulations applicable to the payment of monetary benefits.
An earlier effective date of July 24, 1997 for TDIU is
granted, subject to the controlling regulations applicable to
the payment of monetary benefits.
______________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs